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2019 DIGILAW 1575 (KAR)

Manjunatha v. Chethan

2019-07-04

K.SOMASHEKAR

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JUDGMENT : K. Somashekar, J. Though these appeals are listed for admission, with the consent of learned counsel for the appellants and the learned counsel for the respondents, the matters are taken up for final disposal. 2. Mfa No.7797/15 is preferred by the appellant/claimant seeking enhancement of compensation awarded by the Tribunal in MVC No.622/2012 dated 07.04.2015 whereby the Tribunal has awarded compensation of Rs.2,05,900/- with interest @ 6% p.a. from the date of filing of the petition till the date of deposit. 3. Mfa Nos.4353/15 and 4354/15 are preferred by the Insurance Company challenging the common judgment and award dated 07.04.2015 passed by the Tribunal in MVC Nos.622/2012 and 623/2012, whereby the Tribunal has held respondents 2 and 3 jointly and severally liable to pay the compensation amount and respondent No.3-Insurance Company was directed to deposit the entire compensation amount along with interest within one month from the date of the order. 4. The factual matrix of these cases are as under: It is stated in the claim petition that on 18.11.2011 the claimants, Manjunatha (Appellant in MFA No.7797/15 and claimant in MVC No.622/12) and Hanumanthappa (Claimant in MVC No.623/12) boarded Renukamba Bus bearing Reg.No.KA-19/AB-6030, to go to Bhadravathi and at about 10 a.m., when the said bus was coming near Bommanakatte Housing Board with high speed, the right side back tyre bursted and due to the said burst, the mudguard and flooring of the bus smashed and hence the claimants sustained grievous injuries and also sustained fractures. The injured- Manjunatha has sustained segmental/communited fracture present over right tibia and fibula, communited fracture present over left calcaneum and he was shifted to Shivamogga and admitted to Mallikarjuna Nursing Home wherein he took treatment as an inpatient for a period of 25 days and incurred huge amount for his treatment. He was doing coolie work to eke out his livelihood and earning a sum of Rs.7,000/- p.m., and was maintaining his family members. But, because of the accidental injuries, he could not discharge his work as he was doing before the accident. He has suffered with permanent disability. Hence he preferred the claim petition before the Tribunal seeking compensation. Notice was ordered on the respondents in the claim petitions and respondents have filed their written statements. Based on the pleadings of the parties, the Tribunal has framed the issues. He has suffered with permanent disability. Hence he preferred the claim petition before the Tribunal seeking compensation. Notice was ordered on the respondents in the claim petitions and respondents have filed their written statements. Based on the pleadings of the parties, the Tribunal has framed the issues. On behalf of the claimants, the claimants examined themselves as PW-1 in both the claim petitions and got examined Dr. Nandakishore as PW-3 and got marked the documents at Ex.P1 to Ex.P71 in MVC No.622/15 and Ex.P1 to Ex.P14 in MVC No.623/15. On behalf of the respondents, one Mr.B.L.Santhosh was examined as RW-1 and got marked Ex.R1 to R6. On evaluating the entire oral and documentary evidence placed on record, Tribunal by a common judgment and award, awarded the compensation in a sum of Rs.2,05,900/- with interest at 6% per annum from the date of petition till the date of deposit to the claimant in MVC No.622/15 and a sum of Rs.15,000/- with interest at 6% per annum from the date of petition till the date of deposit to the claimant in MVC No.623/15. The respondent Nos.2 and 3 being the owner and insurer of the offending vehicle were jointly and severally liable to pay the compensation amount. The Insurance Company was directed to deposit the said compensation amount with interest within a period of one month from the date of order. 5. Sri. M. V. Maheswarappa, learned counsel for the appellant in MFA No.7797/2015 has taken me through the evidence of PW-1 Manjunatha and contended that the Tribunal has not appreciated the evidence of PW-1 in order to arrive at a right conclusion in awarding compensation suitably, but has erroneously given a finding in assessing his income at Rs.6,000/- p.m., which is on the lower side. According to the learned counsel, the appellant was doing coolie work to eke out his livelihood and was earning a sum of Rs.7,000/- p.m. Hence the income of the appellant has to be increased from Rs.6,000/- to Rs.7,000/- p.m. Learned counsel further contends that due to the accident, the appellant has sustained segmental/communited fracture present over right tibia and fibula, communited fracture present over left calcaneum and suffered permanent disability. Hence he pray to enhance the compensation awarded. 6. Sri. Hence he pray to enhance the compensation awarded. 6. Sri. B. Pradeepa, learned counsel for the appellant/Insurance Company in MFA Nos.4353/2015 and 4354/2015 and learned counsel for the respondent in MFA No.7797/2015 has contended that by the impugned judgment and award, the respondent Nos.2 and 3 being the owner and insurer of the offending vehicle were jointly and severally held liable to pay the compensation amount and the Insurance Company was directed to deposit the said compensation amount with interest within a period of one month from the date of order. He has further contended that as per Ex.R6, driving licence of the driver of the offending vehicle, the transport endorsement was not renewed as on the date of the accident ie., on 18.11.2011 and the same was renewed only from 14.08.2012 and was valid upto 03.08.2015 and therefore the driver did not possess a valid and effective driving licence to drive the particular class of vehicle and this vital aspect was not considered by the Tribunal. It is further contended that the Tribunal has given erroneous findings in not noticing the ratio of reliance rendered by the Hon'ble Supreme Court in THE NEW INDIA ASSURANCE CO. LTD. V. ROSHANBEN RAHEMANSHA FAKIR, (2008) ACJ 2161 (SC) so also in the case of ORIENTAL INSURANCE COMPANY LTD. VS. ANGAD KOL & ORS., (2009) ACJ 1411 (SC). Urging these grounds, the learned counsel for the Insurance Company seeks to allow the appeals by setting aside the impugned judgment and award. 7. I have heard the arguments of the learned counsel for the parties. 8. In MFA No.7797/15, the injured Manjunatha is seeking enhancement of compensation on the ground that he war earning a sum of Rs.7,000/- p.m., but the Tribunal has taken a sum of Rs.6,000/- p.m. as his income. The accident took place on 18.11.2011 as per the averments made in the claim petition and also substantiated through his evidence. But there are some norms, illustrations and guidelines relating to the notional income to be taken where there is no proof of income. The accident is of the year 2011. Taking into consideration the said norms and guidelines, the income of the appellant assessed by the Tribunal at Rs.6,000/- p.m. is inadequate and on the lower side. Therefore, I deem it just and proper to consider the income of the appellant at Rs.6,500/- p.m. instead of Rs.6,000/-. The accident is of the year 2011. Taking into consideration the said norms and guidelines, the income of the appellant assessed by the Tribunal at Rs.6,000/- p.m. is inadequate and on the lower side. Therefore, I deem it just and proper to consider the income of the appellant at Rs.6,500/- p.m. instead of Rs.6,000/-. The permanent disability assessed by the Tribunal is 7%. Accordingly future loss of income is worked out to be Rs.6,500/- x 12 x 14 x 7% = Rs.76,440/-, as against Rs.70,560/- assessed by the Tribunal. 9. Since the income of the appellant has been enhanced from Rs.6,000/- to Rs.6,500/-, the compensation awarded under the head loss of income during laid up period will also be enhanced from Rs.36,000/- to Rs.39,000/-. 10. The appellant Manjunatha took treatment as an inpatient for 25 days and has suffered segmental/ communited fracture present over right tibia and fibula, communited fracture present over left calcaneum. The Tribunal has awarded Rs.30,000/- under the head pain and suffering, which is on the lower side. Therefore, I deem it just and proper to enhance the same to Rs.50,000/-. 11. The Tribunal has not awarded compensation in respect of loss of amenities in life. The sufferings undergone by the injured cannot be compensated in terms of money. But, keeping in view of the injuries sustained by the appellant, it is just and proper to award a sum of Rs.20,000/- towards loss of amenities. 12. In view of the reasons and findings, it is opined that the appellant in MFA No.7797/2015 is entitled for an enhanced compensation in a sum of Rs.48,880/-, rounded of to Rs.49,000/- with interest @ 6% p.a. 13. Mfa Nos.4353/15 and 4354/15 are preferred by the Insurance Company questioning the legality and correctness of the judgment in MVC Nos.622/12 and 623/12 whereby respondent Nos.2 and 3 are jointly and severally held liable to pay the compensation amount and respondent No.3, Insurance Company, is directed to deposit the said compensation amount within one month from the date of the order. In this regard, it is relevant to refer to the judgment rendered by the Hon'ble Supreme Court in PAPPU & ORS. VS. In this regard, it is relevant to refer to the judgment rendered by the Hon'ble Supreme Court in PAPPU & ORS. VS. VINOD KUMAR LAMBA, (2018) AIR SC 592, wherein Hon'ble Supreme Court has held as under: "Motor Vehicles Act (59 of 1988), S.149 - Insurer's liability - Accident occurred due to rash and negligent driving of truck - Insurer taking plea that driver of offending truck had no valid licence - Except copy of driving licence of person, owner of offending truck not producing any evidence establishing that it was driven by authorised person having valid driving licence - Fact that offending truck was duly insured - Would not per se make Insurance Company liable - However, Insurance Company directed to pay award amount to claimants in first instance and in turn, recover same from owner of vehicle." 14. Keeping in view of the ratio of reliance of the case of PAPPU (SUPRA) the concept of pay and recover, is clear. Therefore the contention taken in these appeals by the learned counsel for the Insurance Company does not hold any substance. Accordingly, the Insurance Company shall pay the compensation amount at the first instance and it shall be at liberty to recover the same from the owner of the offending vehicle, in accordance with law and in terms of the judgment rendered by the Apex Court stated supra. 15. In view of the aforesaid reasons and findings, I proceed to pass the following: ORDER (i) MFA No.7797/2015 is hereby allowed-in-part. The appellant-Manjunatha is entitled for an enhanced compensation of Rs.49,000/- along with interest @ 6% p.a. (ii) The respondent - Insurance Company shall deposit the aforesaid enhanced compensation amount with accrued interest before the MACT in MVC No.622/2012 within a period of four weeks from the date of receipt of a certified copy of this order. (iii) MFA Nos.4353/2015 and 4354/2015 are hereby allowed-in-part. (iv) The Insurance Company shall pay the entire compensation amount with accrued interest, at the first instance and it shall be at liberty to recover the same from the owner of the offending vehicle, in accordance with law. (v) Amount in deposit, if any, in these appeals shall be transmitted to the concerned Tribunal, forthwith. Office is directed to draw the decree accordingly.